HARIDEV MISRA versus JAMUNADAS AGARWAL & ORS on 17 February 1989

HARIDEV MISRA

v.

JAMUNADAS AGARWAL & ORS.

FEBRUARY 17,

1989

(K. JAGANNATHA SHE'ITY, A.M. AHMADI ANDKULDIP SINGH, JJ.]

U. P. Urban Building (Regulation of Letting Rent and Eviction)Act, I972—Secti0ns 3(i) and 20(2) (a)——Eviction of tenant for default—Landlora' raising a new plea that tenancy was for furnished house—Whetherpermissible to raise such plea.

The respondent-landlord filed a suit for eviction of the appellants-tenant from the house in question on the ground of failure to pay rentand for realisation of arrears of rent. While the respondent pleadedthat the rate of rent was Rs.70 per month, the appellant contended thatit was only Rs.40 and not Rs.70, and that he was paying Rs.30 permonth for the furniture, provided by the landlord which he returnedsometime after the tenancy commenced.

The trial court dismissed the suit holding that the rate of rent wasRs.40 per month and, as such, the appellant was not defaulter. In therevision filed by the respondent, the Revisional Court held that the rentwas Rs.70 per month.

The appellant filed a writ petition before the High Court, whichrevisionquashed[the]revisional order and remanded the case for deciding the petition afresh.Thereafter, the revisional court again allowedthe revision.

The appellant challenged the revisional order before theCourt which dismissed the same. High In the appeal, by special leave, it was contended on behalf of thetheappellant-tenant receipt, the rent that of in the the face house of was clear Rs.40 admission per month, of the respondent and that the inamount of Rs.70 per month mentioned in the rent note had been ex-plained in the receipts, to be Rs.40as house rent and Rs.30 forfurniture.

On behalf of the respondent, it was contended that the tenancy ”\.A"‘

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HARIDEV MISRA

v. JAMUNADAS AGARWAL

was for a furnished building[and][ failure][ to]pay[a]part[of][ the][ rent,][ in]respect[of][ furniture,][ would][ attract][ the][ provisions][ of][ s.][ 20(2)(a)][ of]the U.P. Urban Building (Regulation[of]Letting[Rent][ and]Eviction)[Act,]1972 and the appellant[was][liable][ to][ be]ejected.[It][ was][ also][ contended]that the tenancy being of[ a] furnished[house][ the][ tenant][ could][ not][ under]law, unilaterally[surrender]part[of][ tenancy.]

Allowing[the]appeal,

HELD: It was never the[ case][ of][ the]respondent[at]any stage[that]furnished house[was] given[on][ rent][ to][ the]appellant.[In][ the][ notice][ before]filing[the][ suit][ and][ in][ the]plaint,[ it][ was][ specifically][ pleaded][ that][ rent][ of]the house was Rs.70 per month[and][ the tenant][ was][ in][ arrears.][ In][ the]written statement, appellant[took][ a][ clear][ stand][ that][ the][ rent][ of][ the]house was only Rs.40 and[Rs.30][ was][ for][ the]furniture,[which]accordingto him, was returned after the[commencement][ of][ the]tenancy.[[7][60C-D]]

In the face of clear pleadings[on][ the]record,[it][ is]impermissible[to]raise the plea that[the][ landlord][ rented][ a][ furnished][ house][ to][ the][ tenant.]It would be contrary[to][ the] pleadings.[That]apart,[neither][ before][ the]trial court nor before[the][ Revisional][ Court][ and][ not][ even][ before][ the]HighCourt this plea was raised. [760F]

The trial court relied upon[the][ rent]receipts, 39/C[and][ 40/C,]produced by[the]appellant.[It][ was][ clearly][ mentioned][ in][ the][ receipt][ 39/C]that Rs.40were towards house[rent][ and][ Rs.30][ towards][ furniture]charges[and][ Rs.3][ towards][ water][ and][ electricity][ charges.]Theres-pondent[admitted]thecontents of the receiptbut explainedthatRs.30 towards furniture charges[was][ mentioned][ at][ the]request[of][ the]tenant. [758G-H]

In the face of the clear[admission]by, the, respondent[in][ the][ two]receipts,[the]finding[ of][ the][ Revisional][ Court][ that][ the][ monthly][ rent][ was]Rs.70 is erroneous. [759D]

CIVIL APPELLATE[JURISDICTION:][ Civil]Appeal[No.][ 912]of 1989..

From the Judgment and[Order][ dated][ 11.5.1988][ of][ the][ Allahabad]High[Court][ in][ Misc.][ W.P.][ No.][ 7886][ of][ 1985.]

Yogeshwar[Prasad][ and][ Mrs.][ Shobha][ Dikshit][ for][ the][ Appellant.]

Satish Chandra and Madan Lokur for the Respondents.The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted.

This appeal arises out of a suit filed by respondent (plaintiff)landlord in the Court of Judge, Small Causes, Gorakhpur, for evictionof the appellants (defendant) tenant from the house in question on theground[of][ failure][ to]pay the rent and for realisation of arrears'of rentand electricity charges amounting to Rs.2,560.60. It was pleaded thatthe tenant was to pay a monthly rent of Rs.70 apart from Rs.3 permonth as water and electricity charges and was in arrears since July,1979 which he failed to pay. The appellant contested the suit mainly onthe ground that the rate of rent was not Rs.70 per month but it wasonly[Rs.40][ and][ besides][ that]hewas provided with furniture by thelandlord for which he was paying Rs.30 per month. His case furtherwas that some time after the tenancy commenced, he returned thefurniture.

The Judge, Small Causes Court, by his judgment dated 10thNovember, 1983, dismissed the suit holding that the rate of rent wasRs.40 per month and as such the appellant was riot a defaulter. Therespondent[filed][ a]revision which was allowed by the Additional Dis-trict Judge, Gorakhpur. The Revisional Court held that the rate ofrent was Rs.70 per month. The appellant filed a writ petition againstthe revisional order before the Allahabed High Court. The High Courtallowed the writ petition, quashed the revisional order and remandedthecase for deciding the revision petition afresh. Thereafter, theRevisional Court again allowed the revision and set aside the judg-ment of the Trial Court and ordered ejectment. The appellant againchallenged[the][ revisional]order by way of a writ petition before theAllahabad High Court but the same was dismissed. Hence this appeal.

The Trial Court primarily relied upon documents 39/C and 40/Cproduced by[the]defendants. Document 3910 is a receipt by the plain-tiff wherein details of Rs.73 are given. It is clearly mentioned in thereceipt[that][ Rs.40][ were]towards house rent, Rs.30 towards furniturecharges[and][ Rs.3][ water]and electricity charges. The plaintiff admittedthe contents of receipt 39/C but he explained that Rs.30 towards fumi-ture charges were mentioned at the request of the defendant. Theofplaintiff the house strongly was mentioned relied upon at the Rs.70. rent The note Trial 97/C Court wherein rejected monthly the rent rent g note[on][the] ground[that][ the][ same][ was][ not][ signed][ by][ the,][ defendant.]Basing[its]findings[ on][ the][ receipt][ 391C,][ the][ Trial][ Court][ diSmissed][ the]suit. The[Revisional][Court,][ on][ the][ other][ hand,][ found][ force][ in][ the][ con-]tention of[the] plaintiff[that][ the][ rent][ note][ 97/C][ was][ signed][ by][ the]defendant. It[ was][ held][ that][ the][ admission,][ if][ any,][ of][ the][ plaintiff][ in]receipt[39/C][ is][ contradicted][ by][ the][ rent][ note][ 97/C][ and][ as][ such][ cannot]be taken into[consideration.][ The][ Revisional][ Court][ thus][ differed][ from]the Trial Court[and][ ordered]ejectment.

Before us, the[counsel][ for][ the]appellant[Shri][ Prasad][ contends]that in the face[of][ clear][ admission][ of][ the][ respondent][ in][ the][ receipt][ 39/C]the rent of[the][ house][ was][ Rs.40]per[month.][ He][ further][ contends‘that]the rent note,[even][if][ taken][ into][ consideration,][ has][ been][ explained][ by]the receipts 39/C[and][ 40/0]According[ to][ him][ Rs.70][ per][ month]mentioned in[the][ rent][ note][ has][ been]explained[in][ the][ receipts][ to][ be]Rs.40 as house[rent][ and][ Rs.30][ for][ the][ furniture.][ We][ find][ force][ in][ the]contention[of][ the][ learned][ counsel.][ In][ the][ face][ of][ clear][ admission][ by][ the]respondent[in][ the][ two][ receipts][ the][ finding][ of][ the][ Revisional'Court][ to]the effect that[the] monthly[rent][ was][ Rs.70][ is][ erroneous.][ Faced][ with]this situation[Shri][ Satish][ Chandra,][ learned][ counsel][ for][ the][ respondent]invited our attention[to][ Section]3(i)[of][ the][ UP.][ Urban][ Buildings](Regulation[of][ Letting,][ Rent][ and][ Eviction)][ Act,]1972 (hereinaftercalled ‘the Act’)[and][ contends][ that][ the][ tenancy][ was][ for][ a][ furnished]building[and][ as][ such][ failure][ to][ pay][ even][ Rs.30][ in][ respect][ of][ furniture]would attract[the]provisions[of][ Section][ 20(2)(a)][ of][ the][ Act][ and][ the]appellant[is][ liable][ to][ be][ ejected.][ Section][ 3(i)][ and][ Section][ 20(2)(a)][ of]the Act are[as][ under:]

“Section 3(i) “building’s,meansa residentialornon—residential roofed[structure][ and][ includes—]

(i) any[land](including[any][ garden),][ garages][ and][ out-]houses, appurtenant[to][ such][ building;]

(ii) any[furniture][ supplied][ by][ the][ landlord][ for][ use][ in][ such]building;

(iii) any fittings[and][ fixtures][ affixed][ to][ such][ building][ for]the more beneficial enjoyment[thereof”.]

“Section 20(2)(a).[“that][ the][ tenant][ is][ in][ arrears][ of][ rent][ for]not less than four months,[and][ has][ failed][ to][ pay][ the][ same][ to]the landlord within[one][ month][ from][ the][ date][ of][ service]upon[him][ of][ a][ notice][ of][ demand.”]

SUPREME COURT REPORTS[1989]1 S.C.R.

furnituresuchSection buildingShri 3(i) would Satish includes and amount Chandra as any such to furniture non—payment contends arrears supplied of that rent of definition part and by the of the the landlord of rent building meant for under use for incontendsfailed to that pay it the was same a furnished is liable house to be which ejected. was In let-out other appellant to words, the having appel~ heSectionsproposition of law canvassed by Shri Satish Chandra on the basis ofthe present 3(i) case and to 20(2)(a) advance of the the Act, same. but It there was never is no the basis case for of him the in N.P.V.